Citation Nr: 0606667
Decision Date: 03/08/06 Archive Date: 03/23/06
DOCKET NO. 05-36 977 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Togus,
Maine
THE ISSUE
Entitlement to separate schedular 10 percent disability
ratings for bilateral tinnitus.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Daniel Markey, Associate Counsel
INTRODUCTION
The veteran had active service from May 1943 through February
1946, and from September 1950 through March 1952.
The matter is before the Board of Veterans' Appeals (Board)
from a rating decision promulgated by the Department of
Veteran's Affairs (VA) Regional Office (RO) in Togus, Maine
in August 2005, which denied the claim.
FINDINGS OF FACT
1. An October 2003 rating decision established service
connection for tinnitus, assigning a 10 percent rating
effective August 15, 2003; the veteran did not appeal and the
decision is final.
2. The veteran filed his claim for separate ratings for
tinnitus in each ear on April 21, 2005.
CONCLUSION OF LAW
Inasmuch as there is no legal basis for a schedular rating in
excess of 10 percent for the veteran's tinnitus, the benefit
sought on appeal is denied. 38 U.S.C.A. §§ 1155, 5107 (West
2002); 38 C.F.R. §§ 4.25, 4.87, Diagnostic Code 6260 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Because the law and not the facts are dispositive in this
case, the provisions of the Veterans Claims Assistance Act
(VCAA) are not for application. More specifically, because
the claim is being denied as a matter of law, no further
development under the VCAA or previously existing law is
warranted. See Mason v. Principi, 16 Vet. App. 129, 132
(2002); see also Smith v. Gober, 14 Vet. App. 227 (2000)
(VCAA has no effect on appeal limited to interpretation of
law); Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (VCAA
not applicable where law, not factual evidence, is
dispositive).
Analysis
The veteran in this case argues that, inasmuch as his
tinnitus is present in both his right and left ears, he is
entitled to separate schedular 10 percent ratings for each
ear.
In that regard, disability evaluations, in general, are
intended to compensate for the average impairment of earning
capacity resulting from a service-connected disability. They
are primarily determined by comparing objective clinical
findings with the criteria set forth in the rating schedule.
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2005).
The RO awarded service connection for tinnitus by an October
2003 rating decision, with a 10 percent rating assigned
effective August 15, 2003, the date he filed his claim. In
correspondence filed April 2005, the veteran, through his
representative, indicated that he should be assigned separate
10 percent ratings for each ear.
Pursuant to 38 C.F.R. § 4.87, Diagnostic Code 6260 (2005),
persistent tinnitus whether unilateral or bilateral, warrants
a single 10 percent rating.
On May 14, 2003, the VA published a final rule, revising the
rating schedule provision affecting the evaluation assignable
for tinnitus. See 68 Fed. Reg. 25,822-23 (2003). This
revision added a note to Diagnostic Code 6260 directing
raters to "[a]ssign only a single evaluation for recurrent
tinnitus, whether the sound is perceived in one ear, both
ears, or in the head." Id. The amended regulation became
effective on June 13, 2003. Id; see also 38 C.F.R. § 4.87,
Diagnostic Code 6260 (2003).
Regarding the veteran's tinnitus, the Board notes that the
competent medical evidence reflects that he experiences
recurrent tinnitus in both ears. However, under 38 C.F.R. §
4.87, Diagnostic Code 6260, the maximum schedular rating is
the 10 percent evaluation currently in effect. The revision
to this Diagnostic Code, which became effective before the
veteran filed his claim, prohibits the assignment of a
separate rating for each ear. 38 C.F.R. § 4.87, Diagnostic
Code 6260, Note 2 (2005).
The veteran, through his representative, argues that,
pursuant to the provisions of 38 C.F.R. § 4.25(b) (2005), he
is entitled to separate 10 percent evaluations for tinnitus
in each ear. In pertinent part, that regulation states that,
"[e]xcept as otherwise provided in [the rating] schedule,
disabilities arising from a single disease entity, e.g.,
arthritis, multiple sclerosis, cerebral vascular accident,
etc., are to be rated separately as are all other disabling
conditions, if any." However, in this case, Diagnostic Code
6260 currently "provides otherwise." Specifically, the
regulation provides "that only a single 10 percent evaluation
for recurrent tinnitus is to be assigned, whether the sound
is perceived in one ear, both ears, or in the head." 38
C.F.R. § 4.87, Diagnostic Code 6260, Note (2) (2005). Thus,
38 C.F.R. § 4.25(b) provides no basis for the award of
separate ratings in this case.
In light of the aforementioned, the Board concludes that
pursuant to applicable law and regulation, separate schedular
10 percent disability ratings for bilateral tinnitus are
prohibited as a matter of law. Id. In a case such as this,
where the law, and not the facts, is dispositive, the claim
should be denied due to a lack of legal entitlement under the
law. Accordingly, the claim for separate schedular 10
percent disability ratings for service-connected bilateral
tinnitus is denied as a matter of law. See Sabonis v. Brown,
6 Vet. App. 426, 430 (1994).
ORDER
The claim of entitlement to separate schedular 10 percent
disability ratings for bilateral tinnitus is denied.
____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs